A pair of firearms provisions buried deep within the chairman’s mark of the fiscal 2015 Commerce-Justice-Science funding bill highlight an emerging strategy in the annual debate over spending: Policy language that seeks to make permanent changes in the law.
Gun-related policy riders have long been flash points in the wide-ranging Commerce-Justice-Science spending bill, and the $51.2 billion version House appropriators plan to mark up Thursday would extend many politically divisive provisions that have been carried annually under the measure.
But the chairman’s mark also seeks to make two of those policy riders permanent: one concerning the import of antique firearms, and another related to the export of certain gun parts and accessories to Canada.
The “permanency” provisions are expected to spark opposition from Democratic appropriators with strict views about gun control at this week’s markup. But perhaps even more critically, the language also provides clues about how appropriators could exert their influence and make significant changes to public policy during a fierce midterm election year in which little legislation outside of spending bills is expected to move.
The strategy is a “new twist” on an old debate, said Rep. Chaka Fattah, the ranking Democrat on the House Commerce-Justice-Science Appropriations subcommittee, who says he has seen a “ramp up” in permanency language in the C-J-S bill in recent years.
Rep. Mike Simpson of Idaho, a senior GOP appropriator who chairs the Energy-Water subcommittee, said permanency language could be more appealing to members now because appropriations bills are must-pass measures in an otherwise gridlocked Congress.
“Maybe you might see it a little more often because of our inability to get other legislation through the floor. Or we’ll get it through the floor but it won’t get taken up by the Senate, so you put something in the appropriations bill,” said Simpson, who added that most attempts to add such language in the past were defeated and removed during House-Senate conference negotiations.
The provisions could, in effect, become extensions to the legislative currency that policy riders in appropriations bills have become in the wake of the 2010 earmark ban.
One of this year’s C-J-S riders would prevent federal funds from being spent on salaries or administrative costs associated with any effort to require Americans to have licenses in order to export certain gun components, parts and accessories to Canada. The other would bar federal money from being spent on salaries or administrative costs associated with any effort to deny Americans the ability to import certain guns, parts and ammunition that are categorized as antique or relic firearms.
While the two riders would be made permanent under the bill, fiscal 2015 is not the first time appropriators have employed the strategy, including on the subject of guns.
The fiscal 2013 continuing resolution (PL 113-6) made four gun riders permanent over the objections of liberal advocates who said the language would make it harder to crack down on the illegal use of firearms.
One provision required the Bureau of Alcohol, Tobacco, Firearms and Explosives to emphasize in reports that its gun trace data “cannot be used to draw broad conclusions about firearms-related crime.” Another kept in place a broad definition of antique guns and ammunition that may be imported into the United States.
A third banned any federal rule requiring gun dealers to conduct physical inventories to determine whether firearms have been lost or stolen. The fourth prohibited the ATF from refusing to renew a gun dealer’s license “due to a lack of business activity,” a provision that gun control groups said would make it harder to identify potentially rogue dealers who are not involved in legitimate business transactions.
While the Commerce-Justice-Science measure is not the only appropriations bill that has carried permanency language — the fiscal 2014 omnibus (PL 113-76), for example, includes several permanency directives requiring federal agencies to submit regular reports to Congress — “it’s novel the degree to which it’s been used on these gun riders,” said Arkadi Gerney, a senior fellow at the liberal Center for American Progress, who added that including permanency language allows lawmakers “to make these riders invisible” in future bills.
The National Rifle Association makes no secret about the fact that it is a driving force behind such permanency language on gun provisions. But Catherine Mortenson, an NRA spokeswoman, said the tactic should not be construed as anything sinister.
This year’s provisions “have been in there as annual riders every year between 2006 and 2014,” Mortenson said. “The difference is this year we’re seeking to make them permanent law so that we won’t have to include them as a rider each year.”
Doing so, she added, “reduces the amount of staff work” and “streamlines the process.”
Fattah said he is not necessarily surprised by the phenomenon.
“A party in the majority at some point won’t be in the majority. Whether that’s after this election or some other election, there’s always an interest in trying to codify your policy positions. That would happen with Democrats or Republicans,” he said.
By nature, the policy riders included in annual appropriations bills are considered non-permanent, presumed effective for only the length of the fiscal year covered by the underlying spending measure.
But for lawmakers who would like to enact more permanent changes in law, some have taken to including permanency language like “thereafter” or “henceforth” in spending bills, which need only be approved once, subsequently allowing it to go undetected in future years unless Congress decides to proactively pass a bill striking that language.
The language for this year’s two gun riders, for example, deems that the provisions shall be law “in the current fiscal year and any fiscal year thereafter.”
It is unclear when the practice started occurring in annual spending bills, but some former House and Senate appropriations aides traced the permanency directives back as far as the mid-1990s. Others say they have been used in one form or another for far longer.
Some former appropriations staffers said they utilized permanency language sparingly, only for provisions that had long been carried as policy riders in spending bills in which they knew that a status quo had been formed on the issue and that partisan positions would not change, according to one former Democratic appropriations aide.
“It made our lives a lot easier,” said one former Senate Republican appropriations staffer. “We figured out you could put a provision in there that makes general provisions permanent and then you don’t have to carry it every year and it was really done to obviate the controversy in these things.”
We found that “if you can get away with” including such permanency provisions in one year’s spending bill, “then you don’t have to deal with it the next year: it won’t be glaringly sitting there for some young staffer to run to his boss and say, ‘Hey, look what they did,’” the former GOP aide said.
A current House GOP appropriations aide said such language is mainly meant as a housekeeping exercise to save time for staff.
“When appropriate, the committee has sought to streamline bills by making long-standing, non-controversial provisions current law, rather than carrying them individually year after year,” the staffer said.
At its core, permanency language — just like many policy riders — violates House rules for legislating on appropriations bills. However, those rules are typically waived or not enforced.
Further, the Government Accountability Office said Congress could enact permanent legislation, or “words of futurity,” in appropriations bills in an August 2007 opinion.
“When the language or nature of an appropriations act provision makes it clear that such was the intent of Congress, we will construe the provision as permanent legislation,” the report states.